DISTRIBUTION AGREEMENT
This Distribution Agreement (this "Agreement") dated as of May 17, 2006 by
and between Nozin, LLC, a Delaware Limited Liability Company, (the "Company")
and Essentially Yours Industries (Hong Kong) Limited, (the "Distributor")
located at ▇▇▇▇▇ ▇-▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Tsim Sha Tsui Kowloon,
Hong Kong.
WHEREAS, the Company owns the patent rights and trade ▇▇▇▇ rights
(more particularly described in Schedule A.I hereto) for a certain
over-the-counter healthcare product known as "NOZIN - Nasal Sanitizer", which
product and its various components (herein called "Products") are described in
Schedule A.II hereto;
WHEREAS, Distributor desires to obtain from the Company the right to
distribute the Products for resale as herein provided; and
WHEREAS, the Distributor understands that its right to purchase and
resell the Products shall be governed solely by the terms of this Agreement.
NOW THEREFORE, and in consideration of the premises and the mutual
covenants and promises contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Distributor Appointment
1.1 Subject to the terms and conditions contained herein, the
Company appoints the Distributor as its distributor of the Products, and hereby
grants to the Distributor the right to purchase the Products from the Company
and the right to distribute and resell the Products, in the territories and
areas defined in Schedule A. III ("Territory"). Nothing herein shall be
construed to prohibit the Distributor from selling Products at any price.
1.2 The Distributor hereby accepts the appointment and agrees to use
all commercially reasonable efforts to develop the market for the sale of the
Products in the Territory.
1.3 Nothing in this Agreement shall cause or be construed to cause
the Distributor to be an agent of the Company. The Distributor is an independent
contractor and has control of the details of the performance of its obligations
hereunder. The Distributor shall not impose or create any obligation or
responsibility, express or implied, or make any promises, representations, or
warranties on behalf of the Company, other than as expressly provided in this
Agreement.
2. Territory
2.1 Subject to the terms of this Agreement, the Company hereby
designates the Territory, as per Schedule A.III., as the Distributor's sole and
exclusive territory for the marketing, sale and distribution of Products. The
Distributor's marketing responsibility encompasses both sales and service of the
Products in the Territory. The Company also hereby designates the Territory, as
per Schedule A.IV., as the Distributor's territory for the marketing, sale and
distribution of Products. The Distributor's marketing responsibility encompasses
both sales and service of the Products in the Territory. The Company shall
assist the Distributor to advertise and promote the Products by making available
to the Distributor all reliable data in its possession or control, explaining
the virtues of the Products, the clinical trials and studies supportive of such
data.
-1-
2.2 The Company hereby grants to the Distributor the sole and
exclusive right to market, sale and distribute the Products in the Territory, as
per Schedule A.III., ("Exclusive Rights") for an initial period commencing from
the date of this Agreement and ending at the end of nine (9) months after the
date of the Distributor's receipt of the Products ordered by it in its first
purchase order ("Initial Exclusive Term"). The grant of the rights to the
Distributor during this Initial Exclusive Term is in recognition of the expenses
incurred and to be incurred by the Distributor to launch the Products in the
Territories.
2.3 If the Distributor places purchase orders within the Initial
Exclusive Term to purchase from the Company not less than $125,000 of the
Company's Products, the Company shall extend the period of the grant of
Exclusive Rights to the Distributor beyond the Initial Exclusive Term, for an
additional period of one (1) year ("Extended Exclusive Term"), and, at the
Distributor's option (to be exercised in writing by notice by the Distributor to
the Company prior to the expiry of any current Exclusive Term), so long as it
continues to place purchase orders after the first Extended Exclusive Term of
not less than $250,000 of the Company's Products, the Company shall extend its
grant of Exclusive Rights to the Distributor for additional periods of one (1)
year.
2.4 The Company may, in its sole discretion, refuse to ship Products
ordered by the Distributor to a location other than the Territory. The
Distributor shall not sell the Products for delivery or shipment to users
outside the Territory, shall not knowingly sell the Products to users outside
the Territory, and shall not knowingly sell the Products to those who directly
or indirectly sell the Products for use outside the Territory.
2.5 The Distributor shall, use all commercially reasonable efforts
to promote, advertise, sell, and service each of the Products in its Territory,
shall represent the Products at major trade shows and exhibitions in or
encompassing the Territory, shall maintain adequate levels of inventory of the
Products, and shall maintain a staff of trained sales and service personnel
adequate to cover the Territory. The Company may from time to time provide the
Distributor assistance in the Distributors selling and marketing efforts.
3. Purchase of Products
In order to ensure the Company's ability to develop an effective
distribution and product support system for the Products within the Territory,
and in order to ensure the quality of the Products and their reputation within
the Territory, the Distributor shall purchase Products only from the Company and
not from any other source. For its part, the Company will use all commercially
reasonable efforts to ensure that the Products that its sells to the Distributor
are of the best quality, in accordance with the terms of this Agreement.
-2-
4. Distributor Facilities and Inventory
4.1 The Distributor shall maintain one or more suitable places of
business within the Territory that are all sufficient, in the commercially
reasonable judgment of the parties, to display, store, and service the Products.
4.2 The Distributor shall maintain such inventory of Products as is
sufficient, in the commercially reasonable judgment of the parties, reasonably
to meet the sales potential and product support requirements in the Territory.
The Distributor shall comply with all instructions issued by the Company
regarding the storage, handling, and maintenance of the Products that are
reasonably necessary for the protection of persons or property. The Distributor
shall hold the Company harmless with respect to any losses occurring as a result
of the failure to follow such instructions.
5. Prices and Terms of Sales and Delivery
5.1 All sales of the Products to the Distributor shall be governed
by the Company's written pricing policies, credit policy, price lists, discount
schedules, and terms and conditions of sale specified in Schedule C. Prices for
the Products shall be based on the "Distributor Price List" set out in Schedule
C.I, subject to review by the parties in December of each year (commencing in
January 1, 2008) during the term of this Agreement, and any agreed modified
prices shall be effective for the following calendar year. In reviewing such
prices, the parties agree that such prices shall be negotiated and reviewed
based on the principle of commercial fairness.
5.2 Prices stated in the Distributor Price List shall apply only to
Products with standard specifications. At the Distributor's request, the Company
at its option may provide the Distributor with price quotations on Products
having special or modified specifications and any such quotations shall only be
binding with respect to the specific Product and sale to which such a quotation
relates.
5.3 No purchase order shall be binding on the Company until accepted
in writing by a duly authorized representative of the Company, or on the
Distributor unless issued in writing signed by a duly authorized representative
of the Distributor (listed in Schedule E). Any provision contained in any
purchase order issued by the Distributor to the Company which is additional to,
or inconsistent or conflicting with, any provision of this Agreement shall not
be binding on the Company unless the Company assents to such provision in
writing.
5.4 Although the Distributor may now have or hereafter acquire other
outlets or branches, or change the location of any of them, nothing herein shall
obligate the Company to sell or ship the Products on orders accepted by the
Company to any location outside of the Territory. The Company's responsibility
for shipments shall cease upon delivery by the Company of properly and
adequately packaged Products to the transportation company, and any claims for
shortages, losses or damage occurring thereafter shall be made by the
Distributor directly to the transportation company. A copy of any claims against
the transportation company for shortages shall be mailed to the Company for
information purposes within five days after making any such claim.
-3-
5.5 In addition to payment for the Products, the Distributor shall
pay to the Company on demand all reasonable expenses and charges incurred and
paid by the Company, and caused by the Distributor, for demurrage, reshipment,
rerouting, storage and other similar charges with respect to the Products
ordered by the Distributor, including without limitation expenses resulting from
the Distributor's failure promptly to accept delivery of or pay for such
Products.
5.6 The Company shall not be liable to the Distributor for any
injury, loss, damage or expense, whether direct, indirect or consequential,
resulting from or arising out of delays in delivery resulting from delays in
manufacture due to acts of God, and reasonably unforeseeable acts of government.
The time for delivery specified in any quotation or contract shall be extended
during the continuance of such conditions and for a reasonable time thereafter.
If a shortage of supply is so pervasive as to effectively prevent the
Distributor from meeting minimum purchase requirements through purchase of any
reasonable combination of Products, the time period for meeting such minimum
purchase requirements will be extended until the shortage ends
6. Minimum Purchase Requirements
The Distributor shall meet the minimum purchase requirement set
forth in Schedule D. Failure to meet the purchase requirements as per the
schedule at the discretion of the Company, can be just cause for immediate
termination of the agreement.
7. Product Approval
7.1 The Distributor shall be responsible for promptly obtaining, at
the Distributor's sole cost, all governmental approvals necessary for the sale
in the Territory of all Products which are or become subject to distribution
under this Agreement.
7.2 Registration of the Products in the Territory shall be under the
name of the Company unless the local law requires registration under the name of
the Distributor.
7.3 If clinical trials are required to obtain approval for the sale
of any of the Products in the Territory, the Company shall have the right to
review and approve all proposed protocols for such clinical trials and the
Distributor shall not utilize any protocol until approved by the Company. The
Company shall not withhold any such approval unreasonably. Clinical trials shall
be monitored by the Distributor and the cost of such clinical trials will be
borne solely by the Distributor.
7.4 The Distributor shall supply the Company with full details of
the progress of obtaining governmental approvals in the Territory including
documents issued in relation to it, and, upon receipt of notice of termination
of the Agreement by the Company, the Distributor shall promptly and diligently
organize the transfer of the governmental approvals and all related rights to
the Company or to such third party as the Company shall designate.
7.5 Failure to obtain governmental approval for the sale of any of
the Products in the Territory within a reasonable time (which, depending upon
markets, will be in the range of a minimum of 3 months, and a maximum of 12
months after all the information necessary to obtain such approvals is available
to the Distributor) shall be just cause for immediate termination of the
Agreement by the Company.
-4-
8. Quality Control Requirements
8.1 The Company warrants, and shall certify for each batch of
Products shipped by it to the Distributor, that the manufacturer of the Products
is cGMP certified or equivalent if manufactured outside the Untied States.
8.2 The Company shall ensure that the 8ml bottle shall be
shrink-wrapped from top to bottom.
8.3 The Company shall ensure that every batch of Products shipped by
it to the Distributor contains a certificate of analysis in form and content
satisfactory to the Distributor.
8.4 The Company shall ensure that each Product shipped by it
contains and clearly specifies on all packaging, the lot number and expiration
date for such Product, and states that the Product has a shelf life of at least
eighteen (18) months from the date of its manufacture. The Company warrants to
the Distributor that each of the Products that it ships to the Distributor shall
have a shelf life of at least twelve (12) months from the date of shipment.
8.5 The Company warrants to the Distributor that, for each of the
Products that it ships to the Distributor, the labeling for such Product has
been reviewed and approved by appropriate legal counsel and is approved and
classified as an OTC sale in the United States.
8.6 Except as otherwise stated, with respect to the Products
manufactured by the Company, the Company makes only the limited warranty
contained in the Warranty policy for the Products, as set forth in Schedule B
(the "Limited Warranty").
9. Advertising and Promotion
9.1 The Distributor shall provide at its own cost and expense such
advertising and promotion of the Products within the Territory as the
Distributor deems suitable, after consulting with the Company. The Company shall
assist the Distributor to advertise and promote the Products by making available
to the Distributor all reliable data in its possession or control, explaining
the virtues of the Products, the clinical trials and studies supportive of such
data. The Company shall, if available, address the public and media at
promotional events or trade shows at which the Distributor is promoting the
Products.
9.2 The Company may, in its sole discretion, directly advertise and
promote the Products in the Territory or elsewhere. Company shall furnish the
Distributor such promotional literature and other advertising aids as the
Company may generate, to assist the Distributor to promote the Products. Such
material shall remain the property of the Company. Trade show expenses may be
shared as mutually agreed upon in advance by Company and the Distributor from
time to time.
-5-
9.3 In order that the Company may protect all trademarks that the
Company uses, the Distributor shall not use any such marks, names, slogans, or
designations in any advertising copy, promotional material, signs, exhibits or
other written or printed material relating to the Products except that which is
provided to the Distributor by the Company or that which is in a form
specifically approved in writing by the Company (such approval not to be
unreasonably withheld), and shall not use any of the licensed trademarks outside
the Territory or in connection with any sales which would violate Article 2 of
this Agreement.
10. Training
From time to time the Company may, at its sole discretion, and
shall, if required by the Distributor, offer training in the selling and
servicing of the Products which training shall be available to the Distributor's
personnel at such locations as the Company may specify. If such training is
necessary in order for the Distributor to fulfill its sales and service
obligations, the Distributor's personnel shall participate in such training. The
Distributor shall bear that portion of the expenses of its personnel in
attending such training as is reasonably agreed to by the parties from time to
time. The Company shall bear the expenses for the initial product launch in Hong
Kong, the Philippines and China as it pertains to air travel and lodging.
11. Taxes
The Distributor shall pay all license fees, sales, use, service use,
occupation, retailer's occupation, service occupation, personal property, and
excise taxes and any other fees, assessments, or taxes which may be assessed or
levied by any national, state, or local government and any departments and
subdivisions thereof, as a result of the performance of this Agreement or
against any of the Products ordered by the Distributor within the Territory.
12. Patents, Trademarks, Confidential Information and Product Modification
12.1 The Distributor shall not use any trademark or trade names
relating to the Products, whether or not registered, now or hereafter owned or
used pursuant to license by the Company or any ▇▇▇▇ or name similar thereto
except in the manner and to the extent that the Company may specifically consent
in writing, except that the Distributor may refer to the Products by the
trademarks which the Company uses in connection therewith. Such trademarks may
be changed at the sole discretion of the Company. The Distributor is permitted
to use such trademarks or trade names only within the Territory and only in
connection with its performance under this Agreement and, despite such use, the
Distributor shall not acquire any rights or interest thereto.
12.2 The Distributor may include local language for its promotion
of, or packaging of, the Products within the Territories.
12.3 In no event shall the Distributor alter or modify any product
purchased hereunder, or the trademark or trade names used in connection
therewith by the Company, in such a manner as will in any way infringe, impair
or lessen the validity of the patents, trademarks or trade names under which the
Products are made or sold, or as will cause the Products to infringe the
patents, trademarks, or trade names of any third party.
12.4 If the Distributor alters or modifies any Products without the
Company's approval, and/or uses trademarks or trade names in connection
therewith other than those adopted and used by the Company, the Distributor will
indemnify the Company and hold the Company completely harmless from and against
any patent infringement, unfair competition, products liability or other claims
brought against the Company on account of such activities.
-6-
12.5 In the course of the performance of this Agreement, a party
hereto may furnish the other party with confidential business information and
trade secrets ("Confidential Information"). Both during and after the term of
this Agreement, the recipient of such Confidential Information shall not
disclose same to any person other than its employees and shall keep it in strict
confidence and not use it for any purpose other than the performance of its
obligations under this Agreement. Upon termination of this Agreement (for
whatever reason), the recipient of such Confidential Information shall use its
best efforts to return same to the provider.
12.6 Upon termination of this Agreement (for whatever reason), the
Distributor shall immediately return to the Company all documents, product
samples and demonstration kits, and other materials.
12.7 The Distributor shall ensure and guarantee that all staff
involved in the distribution of the Products (and the staff or any
sub-distributor, dealer or agent) are aware of and observe the obligations of
confidentiality contained in this Agreement, which obligations shall apply also
after the time they may have left the Distributor or the sub-distributors,
dealers or agents.
12.8 The obligations of confidentiality in this Agreement shall
survive the termination of the Agreement.
13. Remedies
13.1 Failure of either party at any time to require performance of
any provisions hereof shall not affect its right to require full performance
thereof at any time thereafter. The waiver by either party of a breach of any
such provision shall not constitute a waiver of any subsequent breach thereof or
nullify the effect of such provision.
13.2 In the event that the Distributor is in default with respect to
any of the terms or conditions of or referred to in this Agreement, for 30 days
after receipt of written notice from the Company, the Company may, without
incurring liability to the Distributor or its customers and without prejudice to
any other remedy of the Company, defer further shipments of Products to the
Distributor (whether or not the Company has accepted purchase orders from the
Distributor with respect to unshipped Products) until such default is remedied;
provided that this clause shall not apply if such default is due to an act of
God or act of government or is otherwise not within the control of the
Distributor.
14. Term and Termination
14.1 This Agreement shall commence on the effective date hereinafter
stated and shall continue for a period of 5 years from the date of this
agreement ("Initial Term"). This Agreement may be extended by the Company at its
option for a further period of 5 years so long as the Distributor is not in
default at the time of renewal. The Distributor will provide the Company with a
notice of extension in writing within ninety (90) days prior to the expiry of
the Initial Term.
-7-
14.2 This Agreement may be terminated by either party immediately if
the termination is for a material violation of this Agreement, provided the
alleged violator has been given a written notice of its default and an
opportunity to rectify such default within 30 days after its receipt of the
notice, and so long as such default remains un-rectified at the end of such
notice period.
14.3 In the event the Distributor terminates this Agreement, the
Company maintains the right to appoint a new designated agent and or distributor
for the Territories.
15. Effect of Termination
15.1 Neither party, by reason of the termination or non-renewal of
this Agreement, shall be liable to the other for compensation, reimbursement, or
damages because of the loss of anticipated sales or prospective profits or
because of expenditures, investments, leases, property improvements or other
matters related to the business or goodwill of the parties.
15.2 In the event of termination either party, at its option, may
offset any sums due to it against any sums owed by it.
15.3 Upon termination of this Agreement, the Distributor shall
immediately discontinue use of any and all trademarks and trade-names used
pursuant to license by the Company, including without limitation use in the
Distributor's letterheads, advertising, and name. The Distributor shall not
thereafter use any such ▇▇▇▇ or name or any ▇▇▇▇ or name tending to give the
impression that any relation between the Company and the Distributor still
exists, and the Distributor shall immediately deliver to such address as the
Company specifies all technical information, price lists, catalogs, drawings,
designs, engineering photographs, samples, literature, sales aids, customer
lists and other confidential business information and trade secrets of the
Company in the Distributor's possession.
16. Application and Construction of Agreement
16.1 This Agreement is binding upon and shall enure to the benefit
of the parties hereto and their respective successors and assigns, except that
the Distributor shall not assign this Agreement, or any interest herein
including rights and duties of performance, without the written consent of the
Company.
16.2 This Agreement shall not be binding upon the parties until
signed for them by their duly authorized officers or agents. No agent or
representative of the parties has any authority to vary the terms and conditions
contained herein or to make any representation, statement, warranty, or
agreement not expressed herein.
16.3 The laws of the State of Florida shall govern the construction
of this Agreement and the rights, remedies and duties of the parties hereto. In
the event of any dispute, the parties shall refer any dispute to arbitration
pursuant to the American Arbitration Association, and the parties will consent
to the venue being in Miami, Florida and submit themselves to the in personam
arbitration of such jurisdiction for the purpose of resolving any disputes
arising out of this Agreement or the transactions contemplated thereby.
-8-
16.4 No amendment or modification of this Agreement or any portion
thereof shall be valid unless executed in writing by both parties. Any written
amendment or modification that is executed by both parties shall be binding upon
them notwithstanding any lack of consideration.
16.5 All understandings and agreements, written or oral, heretofore
had or made between the parties with respect to any of the subject matters
herein, are merged into this Agreement which alone fully and completely
expresses their agreement.
16.6 The descriptive headings in the Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
17. Notice
17.1 Any notice required or permitted herein shall be in writing and
shall be hand delivered or mailed, postage fully prepaid, properly addressed to
the party to be notified. The parties' addresses for all notices given pursuant
to this Agreement shall be at the following addresses or the last known address
given by such party to the other. Any such notice shall be considered to have
been given when hand delivered or on the second business day after it was
deposited in the mails.
To the Company:
Nozin, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
Coral Gables, Fl. 33134
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
To the Distributor:
Essentially Yours Industries (Hong Kong) Limited
▇▇▇▇▇ ▇-▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Tsim Sha Tsui Kowloon, Hong Kong.
Attn: ▇▇▇▇ ▇'▇▇▇▇▇
18. Schedules
18.1 The following Schedules are attached hereto and made a part
hereof:
SCHEDULE A Patent and Trade ▇▇▇▇ Rights; Products and Territory
SCHEDULE B Limited Warranty
SCHEDULE C Terms and Conditions of Sale
SCHEDULE D Minimum Purchase Requirements
SCHEDULE E Duly authorized individuals to issue and accept
purchase orders.
-9-
19. Order Stock, Shipping Quantities and Packaging
19.1. Purchase orders from the Distributor will be accepted by the
Company within two working days after the Company's receipt of such purchase
order. Subject to availability, the Products will be made available within forty
five (45) days after receipt by the Company of the purchase order.
19.2 The Distributor shall keep a sufficient inventory (based on the
Distributor's sole discretion) of the Products to supply market requirements.
Such inventory shall be stored in accordance with good manufacturing practices
in order to preserve and protect the Products.
19.3 The Distributor shall destroy, return to the Company, or make
such other disposition, as the Company shall reasonably direct, of any portion
of the Products determined by the Company to be outdated or otherwise to require
such disposition. In the event of such return or destruction before such time as
the Products become un-saleable, the Company shall either replace the Products
or reimburse the Distributor in an amount equal to the Company's current price
for the Products and the Distributor's cost thereof, and transportation costs
incurred by the Distributor. The Company shall have no liability for material
that is outdated as result of the Distributors inventory management practices.
19.4 The Distributor shall organize its inventory management
practices in such a way as to ensure that Products are always supplied to users
in good condition and the Company, at the request of the Distributor, may offer
assistance in this process. The Distributor will, on reasonable notice permit
the Company's authorized representative to inspect its storage facilities and to
take samples of Products in storage at all reasonable times. The Distributor
will comply strictly with all reasonable directions of the Company in relation
to storage and other matters to ensure the quality of the Products it supplies.
The Company shall assist the Distributor to advertise and promote the Products
by making available to the Distributor all reliable data in its possession or
control, explaining the virtues of the Products, the clinical trials and studies
supportive of such data.
19.5 The minimum shipping quantities shall be 5,000 units per
product per purchase order as per Schedule C.III.
20. Exchange of Information
20.1 The Distributor will supply to the Company all reasonable
details in relation to the matters set out below and, subject to commercial
reasonableness, at the frequency specified against each item, such time period
to start from the date of commencement of the Agreement.
(1) Projected sales of Products (a rolling yearly forecast is
required);
-10-
(2) Details by country within the Territory regarding the status
of the sales, including amounts of the Products sold, placed
in inventory and returned (both in dollars and units)
(yearly);
(3) Details of pricing of Products;
(4) An annual business plan detailing the business strategy that
will be used in that calendar year to market the Products by
country, including promotional budgets, expenses and projected
sales at least 60 days prior to the start of the relevant
calendar year;
(5) All technical and medical questions arising from the Products
(as they arise);
(6) Any suggestions or feedback from the field regarding Product
defects, performance, or Product improvement, competitive
products (as they arise);
(7) Any infringement or apparent or threatened infringement of the
Company trademarks or other rights (including any patent
rights) in the Products, of which the Distributor becomes
aware (as they arise) and;
(8) Any customer problem of an urgent nature (within 72 hours
after notification).
20.2 The Company will supply to the Distributor all reasonable
details in relation to the matters set out below and, subject to commercial
reasonableness, at the frequency specified against each item, such time period
to start from the date of commencement of the Agreement.
(1) All technical information, clinical studies and product
information pertaining to the Products that would be material
to the decision of anyone intending to purchase the Products
(as the Company becomes aware of such information);
(2) All promotional materials developed by the Company to market
the Products (as these come into existence); and
(3) Details of any problems with the Products, or complaints
communicated to the Company about the Products, their safety,
merchantability or fitness for their advertised use (as these
become known to the Company).
21. New Products
21.1. If the Company develops a new product comparable to the
Products (a "New Product"), the Company shall propose an amendment to the
Agreement which shall include the New Product as a Product to be distributed
under the Agreement and establish price and terms for the New Product.
-11-
21.2. If the Distributor accepts the amendment by signing and
returning a signed copy of the amendment within 30 days from the mailing thereof
by the Company, the Agreement shall be amended. If the Distributor fails to
accept the amendment within 30 days, the Company may at its option distribute
the New Product in the Territory through another means.
22. Competitive Products
22.1 The Distributor agrees not to directly or indirectly promote,
sell, distribute or otherwise deal in any products that are in competitive
nature with the Products described within. This prohibition shall extend to the
Distributor's parent and subsidiary companies, its affiliates, and any companies
owned or operated or controlled by the Distributor, its shareholders, officers,
directors or their family members.
23. Assignment and Change of Ownership
23.1 In the event the Company sells or transfers its ownership
rights to the patents for NOZIN - Nasal Sanitizer this Agreement shall be
binding in full effect upon the Company and the purchaser. At the sole
discretion of the Company, the Distributor may assign the Distribution Agreement
to another company.
IN WITNESS WHEREOF the parties have executed this Agreement as of
the date first above written.
COMPANY: Nozin, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
(Signature)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
DISTRIBUTOR: Essentially Yours Industries (Hong Kong) Limited
By: /s/ ▇▇▇▇ ▇'▇▇▇▇▇
--------------------------------
(Signature)
Name: ▇▇▇▇ ▇'▇▇▇▇▇
Title: President & CEO
-12-
SCHEDULE A
I. PATENT AND TRADE ▇▇▇▇ RIGHTS
Nozin, LLC owns the worldwide patent (Product is currently in patent
pending status), trade marks, selling and marketing rights for any products
under the Nozin brand name. Nozin, LLC is a wholly owned subsidiary of Global
Life Technologies Corp., the parent company.
II. PRODUCTS
A. NOZIN (Nasal Sanitizer) finished product.
1. 8ml bottle
2. T-Pack (10 pre-loaded swab devices)
III. TERRITORY - EXCLUSIVE DISTRIBUTION
A. Hong Kong
B. Philippines
The Products can only be sold within the Essentially Yours
Industries ("EYI") multi-level marketing network. If other
territories/channels become available to EYI through the expansion
of the EYI multi-level marketing network, then the Distributor may
request the Company, in writing, for permission to extend the
Territory to include these other territories/channels, and the
Company, at it's sole discretion may approve these additional
territories.
IV. TERRITORY - NON-EXCLUSIVE DISTRIBUTION
a. China
In all markets on a non-exclusive basis.
-13-
SCHEDULE B
LIMITED WARRANTY
Nozin, LLC guarantees that reasonable care has been used in the manufacture of
the Products, and that the Products will be merchandisable and reasonably fit
for use. The Company guarantees that the Products are safe if used as directed
by the Company. The Company guarantees the quality and ingredients used for the
manufacture of NOZIN - Nasal Sanitizer. The Company shall be liable for the
replacement of any defective Products returned to the Distributor. The
Distributor shall provide the Company the reason or reasons for the return.
-14-
SCHEDULE C
TERMS AND CONDITIONS OF SALE
I. PRICING
8ml Finished Product
Per Unit Price: $5.00 U.S. Dollars (FOB) Company Manufacturing facility
Travel Pack (10 preloaded swabs) Finished Product
Per Unit Price: $4.50 U.S. Dollars (FOB) Company Manufacturing facility
II. PAYMENT TERMS
Payment for the Products shall be made by either a letter of credit from a
major financial institution acceptable by the Company's bank or by cash
via wire transfer or by check payable to "Nozin, LLC". The Distributor
shall pay a fifty percent (50%) initial deposit on all orders when the
purchase order is issued and is confirmed and accepted by the Company. The
balance of fifty percent (50%) will be paid when the Products are
confirmed by the transportation company to be on-board, on-deck. Nozin,
LLC is not responsible for the costs of carriage, insurance and freight.
III. MINIMUM ORDER SIZE
8ml Bottle: 5,000 units per purchase order for each territory comprising
the Territory.
T-Pack (10 Pre-loaded swab devices): 5,000 units per purchase order for
each territory comprising the Territory.
-15-
SCHEDULE D
MINIMUM YEARLY PURCHASE REQUIREMENTS
Calendar Year 2006
------------------
8ml bottle - 5,004 units
Travel Pack - 5,040 units
Calendar Year 2007
------------------
8ml bottle - 25,020 units
Travel Pack - 25,200 units
Calendar Year 2008
------------------
8ml bottle - 50,040 units
Travel Pack - 50,400 units
2008 minimums to remain through the term o this distribution agreement.
-16-
SCHEDULE E
DULY AUTHORISED INDIVIDUALS TO ISSUE AND ACCEPT PURCHASE ORDERS
On behalf of the Distributors:
------------------------------
▇▇. ▇▇▇▇ ▇'▇▇▇▇▇ and/or his assignee
On behalf of the Company:
-------------------------
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-17-